Constitution Day

John Trumbull, The Resignation of General Washington, December 23, 1783, 1824, Oil on canvas, Yale University Art Gallery, Trumbull Collection. Courtesy of Yale University.

Notes & Comments October 2017

John Trumbull, The Resignation of General Washington, December 23, 1783, 1824, Oil on canvas, Yale University Art Gallery, Trumbull Collection. Courtesy of Yale University.

Constitution Day

On the enduring success of the Constitution of the United States & on George Washington’s Farewell Address of 1796.

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As we write, the two-hundred-and-thirtieth anniversary of the ratification of the Constitution of the United States just passed. The holiday, celebrated on or about September 17 (depending on whether that date falls on a weekend), was known as “Citizenship Day” until 2004, when Congress officially renamed the commemoration “Constitution Day and Citizenship Day.” The new law stipulated that all federally funded educational institutions, and indeed all federal agencies, provide additional programming on the history and substance of the Constitution.

In that spirit (although The New Criterion receives no federal funding), we wanted to offer a few brief observations about that remarkable document and its contemporary significance.

The U.S. Constitution is, by a considerable measure, the oldest written constitution in the world. (Only half of the world’s constitutions make it to their nineteenth birthday.) It may also be the shortest. The main body of the text, including the signatures, is but 4,500 words. With all twenty-seven Amendments, it is barely 7,500 words. The Constitution of the European Union, by contrast, waddles to the scale at 70,000 words—an adipose document the girth of a longish book.

The U.S. Constitution is the oldest written constitution in the world. It may also be the shortest.

What really distinguishes the U.S. Constitution, however, is its purpose. The Framers— James Madison first of all, but also John Adams, Thomas Jefferson, and others—were well acquainted with the effects of arbitrary and unaccountable state power courtesy of the depredations of George III. Accordingly, they understood the Constitution prophylactically, as a protection of individual liberty against the coercive power of the state. “In framing a government which is to be administered by men over men,” as Madison noted in Federalist 51, “the great difficulty lies in this: you must first enable the government to control the governed”—that is hard enough. But then “in the next place [you must] oblige it to control itself.”

As many observers have noted—though perhaps not so many among the governing class—the U.S. government has, in recent decades, done a better job at the former than at the latter.

Part of the problem is the proliferation of laws. The U.S. Constitution may be admirably compact. But the U.S. Code of Laws runs to fifty-three hefty volumes. And then there are the thousands of Statutes at Large representing the blizzard of Acts and Resolutions of Congress. There is a great deal to be said, we think, for proposals to include an annual or biennial sunset provision in laws so that those not deliberately renewed would lapse.

But the proliferation of legal instruments is only part of the problem. Perhaps even more serious is the proliferation and institutionalization of administrative power that operates outside the direction and oversight of Congress, the sole body invested by the Constitution with legislative power. As the legal scholar Philip Hamburger has noted, the explosion in the number of quasi-governmental agencies and regulations over the last few decades has become “the dominant reality of American governance,” intruding everywhere into everyday economic and social life. As if in explicit violation of the second part of Madison’s observation about the difficulty of framing a government, the growth of what has come to be called “the administrative state” seemingly flouts the obligation of state power to control itself.

In our view, the question of how best to deal with the enervating and liberty-sapping effects of the administrative state should occupy a prominent place on the agenda of our national conversation. Doubtless a first step is rhetorical: to bring about a more broad-based and vivid recognition of the extent of the problem. From time immemorial, complacency (often abetted by simple cowardice) has been a great enabler of despotism (and the reality of the administrative state is nothing if not despotic). Challenging that complacency with appropriate bulletins from the front is the first order of business. It is a task that—living up to Madison’s quiet phrase “great difficulty”—will be as protracted as it is important.

But in the context of Constitution Day, we wanted to sound a note of homage as well as admonition. To this end, we would like to remind readers of a document from America’s founding generation that is well known without quite being, we suspect, known well: George Washington’s Farewell Address of 1796.

A first draft of this speech was completed with the help of James Madison in 1792 but was shelved when Washington embarked on a second term. As that drew to a close, Washington once again turned his mind to valedictory remarks and engaged Alexander Hamilton as his principal editor. Probably the most famous part of the six-thousand-word address comes towards the end, when Washington warns the country against “interweaving our destiny with that of any part of Europe, entangl[ing] our peace and prosperity in the toils of European ambition, rivalship, interest, humor, or caprice.” It is folly, Washington observes, for any nation to look for “disinterested favors from another.”

The great rule of conduct for us in regard to foreign nations is in extending our commercial relations, to have with them as little political connection as possible. So far as we have already formed engagements, let them be fulfilled with perfect good faith. Here let us stop. Europe has a set of primary interests which to us have none; or a very remote relation. Hence she must be engaged in frequent controversies, the causes of which are essentially foreign to our concerns.

The world has changed, and America’s place in the world has changed, a good deal since 1796. Yet the spirit of Washington’s observations continues to resonate.

It is folly for any nation to look for “disinterested favors from another.”

Even more pertinent, perhaps, are Washington’s plea for national unity and his Madisonian cautions about the dangers of partisanship and that great eighteenth-century bugbear, “faction.” The unity of government, Washington argues, is “a main pillar” not only of America’s independence but also of its peace, prosperity, and political liberty. Accordingly, it is easy to foresee, Washington observes, that America’s rivals and enemies, domestic as well as foreign, would work industriously to assail that allegiance to national unity.

[M]uch pains will be taken, many artifices employed to weaken in your minds the conviction of this truth; as this is the point in your political fortress against which the batteries of internal and external enemies will be most constantly and actively (though often covertly and insidiously) directed, it is of infinite moment that you should properly estimate the immense value of your national union to your collective and individual happiness.

Class, geography, the prominence of agricultural activity in one part of the country against manufacturing in another part of the country: these and other differences serve to divide individuals and communities one from another. But against these centrifugal forces, the pull of national unity provides a bedrock that underlies not only a higher sense of purpose and identity as one people but also a shared foundation of liberty.

The machinations of partisan interest work against that commitment to unity in insidious ways. “One of the expedients of party to acquire influence within particular districts,” Washington notes, “is to misrepresent the opinions and aims of other districts. You cannot shield yourselves too much against the jealousies and heartburnings which spring from these misrepresentations; they tend to render alien to each other those who ought to be bound together by fraternal affection.”

Underwriting that union is the Constitution, painstakingly designed, freely chosen, “better calculated” than the Articles of Confederation to safeguard liberty, and “containing within itself a provision for its own amendment.” Such an instrument, Washington writes, exerts a sacred obligation upon all citizens: “The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government.” Since the Constitution provides for its own alteration and amendment, all efforts to circumvent its authority are destructive of liberty and the rule of law: “They serve to organize faction, to give it an artificial and extraordinary force; to put, in the place of the delegated will of the nation the will of a party, often a small but artful and enterprising minority of the community.”

Like Madison in Federalist 10, Washington understands that “the spirit of party,” though baneful, is “inseparable from our nature, having its root in the strongest passions of the human mind.” But though the spirit of faction cannot be extinguished without extinguishing liberty itself, governments, especially republican governments, should seek to “mitigate and assuage it.”

His reflections on the dangers of factional interests and their objective correlative, political parties, lead Washington to two further points. The first concerns the inviolability of the separation of powers. Those entrusted with the administration of government, he writes, should “confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism.” Throughout the Farewell Address, Washington is at pains to stress this homely truth: that preserving the institutions that safeguard liberty—above all, the Constitution—is as necessary and as arduous as the establishment of liberty. If the people conclude that the distribution of constitutional powers requires modification, the law demands that they avail themselves of the mechanisms for amendment provided by the Constitution. “[L]et there be no change by usurpation,” Washington warns, for whatever local advantage might be gained by circumventing the law, recourse to unconstitutional means “is the customary weapon by which free governments are destroyed.”

“Let there be no change by usurpation,” Washington warns.

A common if not inevitable view of the Founders presents them as aggressively secular, anemically deist if not forthrightly atheistic. So it is interesting to contemplate Washington’s last major theme—the importance of religion as a support for democratic institutions. “Of all the dispositions and habits which lead to political prosperity,” he writes, “religion and morality are indispensable supports.” He contends, moreover, that morality without the support of religious principle is vain: “[L]et us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.”

As we look back at the two-hundred-and-thirtieth anniversary of the ratification of the U.S. Constitution—and as we look around at the many pockets of ferment and histrionic political disaffection—there is something reassuring about Washington’s valedictory remarks. Reassuring, but also hortatory and admonishing. And yet, how quaint some of his advisories must sound to the ears of us modern sophisticates. After all, America did not become the world’s preeminent power by avoiding foreign entanglements. What do our major cultural and political institutions have to do with “religious principle”? Why should Constitutional niceties stand in the way of promulgating the dogmas of progressivism?

At the same time, there is a current of seriousness and political—nay, human—insight in Washington’s address that must give pause to anyone not wholly ensorcelled by the contentious political evils that Washington anatomizes with such frank earnestness. That is the heartening aspect of this great address.

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